NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

On April 23, 2003 years

According to the petition of public joint stock company Russian-Kyrgyz Amanbank about recognition unconstitutional and not corresponding to Item 1 of Article 12, to the paragraph of the 13th Item 2 of Article 16, to Items 1 and 2 of Article 19, to Items 1 and 2 of Article 38, to Item 1 of Article 86 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic of Item 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic

Constitutional court of the Kyrgyz Republic in structure:

The chairman - Bayekova Ch. T., Predsedatelyasutalinov A. A. deputy., judges - Dryzhaka P. N., Kayypova M. T., Kenensariyev A. S., Togoybayeva Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Soodanbekov U. S., parties: representatives of public joint stock company Russian-Kyrgyz Amanbank: Yeliseyev Alexey Aleksandrovich who is acting on the basis of the power of attorney of January 15, 2003, the signed chairman of the board of this bank; Esenaliyeva Ulana of Ishenkulovich who is acting on the basis of the power of attorney of March 25, 2003, the signed vice chairman of the board of this bank and the representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Koychumanova Aynagul Turarbekovny who is acting on the basis of the power of attorney of January 4, 2003, signed Toraga of General Court of Jogorku Kenesh of the Kyrgyz Republic, being guided by article 82 of the Constitution of the Kyrgyz Republic, article 13 of the Law "About the Constitutional Court of the Kyrgyz Republic" and article 11 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic", considered in proceeding in open court the petition of public joint stock company Russian-Kyrgyz Amanbank about recognition unconstitutional and not corresponding to Item 1 of Article 12, to the paragraph of the 13th Item 2 of Article 16, to Items 1 and 2 of Article 19, to Items 1 and 2 of Article 38, to Item 1 of Article 86 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic of Item 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic.

Having heard the report of the judge Dryzhak P. N., speech of representatives of public joint stock company Russian-Kyrgyz Amanbank of Yeliseyev A. A., Esenaliyeva U. I. and representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Koychumanova A. T., having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of public joint stock company Russian-Kyrgyz Amanbank (further Amanbank) about recognition unconstitutional and not corresponding to Item 1 of Article 12, to the paragraph of the 13th Item 2 of Article 16, to Items 1 and 2 of Article 19, to Items 1 and 2 of Article 38, to Item 1 of Article 86 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic of Item 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by the ruling of arbitration court of Chuy Region of February 5, 2001 on case on the statement of Amanbank on recovery of the term passed for presentation of writ of execution to execution on December 3, 2002 arrived.

The following arguments are given to reasons for the petition:

The decision of Arbitration Court of Chuy Region of May 18, 1999 from JSC Khan Tengri for benefit of Amanbank exacted 1481388 som of credit debt. The court issued writ of execution on collection of this amount. However, in connection with dispute concerning pledged property the bank could not collect timely all amount of credit debt, outstanding were 86 thousand som. Now Amanbank has no opportunity to receive this amount since they pass six-months term for presentation of writ of execution to execution, stipulated in Item 1 Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic.

Arbitration Court of Chuy Region, determination of February 5, 2001, being guided by this regulation, refused to bank recovery of the passed term. According to Item 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic the writ of execution can be shown to execution no later than six months from the date of the introduction of court resolution in legal force, i.e. this regulation establishes term for execution of the court ruling. Considers that the court resolution shall be performed to complete recovery of the violated right and cannot be limited to any term. Item 1 of article 38 of the Constitution of the Kyrgyz Republic determines that recovery of the broken provision - obligation of the state, all its bodies and officials. The specified provision of the law, being unconstitutional, violates constitutional rights of bank and its shareholders on the property and judicial protection guaranteed by the paragraph of the 13th Item 2 of Article 16, Item 1 and 2 of Article 19, Item 2 of article 38 of the Constitution. Amanbank and its shareholders are deprived of the right to receive the property in 86000 som, to own, use and dispose of it. According to Item 1 of article 17 of the Constitution, in the Kyrgyz Republic the laws canceling or infringing human rights shall not be issued. The regulation of Item 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic violates human rights and freedoms, including bank and its shareholders.

According to this petition the constitutional legal proceedings are initiated on December 10, 2002.

During preparation of case for judicial session, determination of March 4, 2003, in connection with exception the Law "About New Edition of the Constitution of the Kyrgyz Republic" of power of the Constitutional court of the Kyrgyz Republic - is stopped to make decisions on constitutionality of the law-enforcement practice affecting constitutional rights of citizens - the constitutional legal proceedings according to the petition regarding recognition of the unconstitutional law-enforcement practice established by the ruling of arbitration court of Chuy Region of February 5, 2001.

In judicial session representative of Amanbank Yeliseyev A. A. asks to satisfy the petition and to recognize Item 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic unconstitutional, and also to recognize not subject to execution the ruling of arbitration court of Chuy Region of February 5, 2001, despite availability of the prohibitive regulation stated in the Law of the Kyrgyz Republic "About new edition of the Constitution of the Kyrgyz Republic" adopted by referendum. At the same time Yeliseyev A. A. refused the reasons stated in the petition of Amanbank for the reasons of untimely presentation of writ of execution for forced execution, having told court that Amanbank did not show the writ of execution for forced execution established by the Code in the six-months time since, in his opinion, terms, stipulated in Item 1 Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic contradict the Constitution of the Kyrgyz Republic. Representative of Amanbank Esenaliyev U. I. supported Yeliseyev A. A. performance. also asked to satisfy the petition of bank.

Representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Koychumanova A. T. did not agree with the arguments stated in the petition and asked court to refuse satisfaction of the petition of Amanbank since considers that six-months term, stipulated in Item 1 Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic for presentation of writ of execution for the purpose of forced execution of the judgment is constitutional as promotes and disciplines participants of process in the shortest possible time to perform judgments.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers the petition not subject to satisfaction on the following bases.

The decision of Arbitration Court of Chuy Region of May 18, 1999 from JSC Khan Tengri for benefit of Amanbank collects the amount of 1481388 som of 88 tyyyn of credit debt. The court issued writ of execution on collection of this amount, outstanding were 86000 som of debt.

The ruling of arbitration court of Chuy Region of February 5, 2001, the statement of Amanbank for recovery of the passed term for presentation of writ of execution to execution, in connection with the expiration of the six-months term provided by part 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic is left without satisfaction.

This determination in supervising procedure was not appealed.

The arbitral Procedure Code of the Kyrgyz Republic, in realization of the constitutional regulations on the right to property, on judicial protection and that the organization and procedure for activity of the courts is determined by the Law, provides procedure and terms of stages of hearing of cases on economic disputes. One of such stages of arbitral procedure is execution of court resolutions.

Item 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic determined that the writ of execution can be shown to execution no later than six months from the date of the introduction of court resolution in legal force or the terminations of the term established in case of delay or payment by installments of its execution, or from the date of removal of determination about recovery of the passed term for presentation of writ of execution to execution. This regulation is not final as in Item 2 of Article 174, Articles 175 and 176 of the Arbitral Procedure Code of the Kyrgyz Republic, the possibility of suspension, break of term and recovery of the passed term for presentation of writ of execution to execution is provided.

The specified provisions establish not completion date of the judgment, and only procedure for presentation of writ of execution to execution, putting certain time frames that does not leave general outline of the stages of legal procedure limited to certain terms. The question of the sufficient duration of term for presentation of writ of execution to execution cannot determine illegality of this regulation, and is in the plane of legal feasibility.

Under the specified circumstances, the Constitutional court of the Kyrgyz Republic considers that Item 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic does not contradict Item 1 of Article 12, to the paragraph of the 13th Item 2 of Article 16, to Items 1 and 2 of Article 38, to Item 1 of Article 86 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic.

Based on stated and being guided by the subitem 1 of Item 3 of article 82 of the Constitution of the Kyrgyz Republic, article 13 and 14 of the Law "About the Constitutional Court of the Kyrgyz Republic", articles 10, of 11, of 13, of 14, of 24, 25 and 29 Laws "About the Constitutional Legal Proceedings of the Kyrgyz Republic", the Constitutional court of the Kyrgyz Republic

DECIDED:

1. Refuse satisfaction of the petition of public joint stock company Russian-Kyrgyz Amanbank about recognition unconstitutional and not corresponding to Item 1 of Article 12, to the paragraph of the 13th Item 2 of Article 16 (edition of May 5, 1993), to Items 1 and 2 of Article 19, to Items 1 and 2 of Article 38, to Item 1 of Article 86 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic of Item 1 of Article 174 of the Arbitral Procedure Code of the Kyrgyz Republic.

2. The final decision, is not subject to appeal.

3. The decision to publish in "Sheets of Jogorku Kenesh of the Kyrgyz Republic", newspapers: "Word of Kyrgyzstan" and "Erkin Too".

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